The New Frontier

Preparing the law for settling on Mars

By David Kopel
& Glenn Reynolds

National Review Online,
June 4, 2002 8:45 a.m.

On
the launch fields of
Cape Canaveral,
rusty gantries and smoke-stained concrete pads sit as silent relics of
the Cold War. What is worthwhile has long since been salvaged; the
rest awaits demolition while signs warn visitors not to come too close
to the dangerous parts. Though sad to look at, the relics are only
small-scale dangers.

The same cannot
be said of another Cold War relic that poses far more risk to
America's future. That is the
Outer Space Treaty of 1967. Like the abandoned launch fields, the
Outer Space Treaty needs to have its valuable parts salvaged, and the
dangerous ones demolished.

The 1967 Outer
Space Treaty has traditionally been viewed with near-veneration by the
space community. And the treaty did many worthwhile things: it forbade
placing nuclear weapons in orbit or on the Moon, it established ground
rules for liability and registration of spacecraft, and it set forth
the principle that outer space should be open to anyone, without
regard to nationality.

These
provisions are still valuable, but it was the "no sovereignty"
provision of Article 2 that got the most attention, and that has done
the most harm. Article 2 provides:

Outer space,
including the moon and other celestial bodies, is not subject to
national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means.

At the time
these words were first written, the United States and the former
Soviet Union were engaged in a ferocious race to reach the Moon.
Before the ink had dried, the
Space Race was winding down. Although the U.S. government followed
through with the
Apollo landings, the government treated our victory in the race to
the Moon as a symbol, rather than a starting point for advancing our
nation's position beyond the Earth.

During the
Johnson-Nixon years, Article 2 of the Outer Space Treaty was admired
as a triumph of Cold War diplomacy, one that deftly defused a source
of tension between the superpowers. But recently publicized documents
demonstrate that it had far more to do with domestic American
budgetary politics than with the prevention of nuclear war. One might
argue — and in fact, some people now are arguing — that in agreeing to
this provision the United States sold its birthright for a mess of
pottage.

It will
encounter strong Opposition from NASA and Ed Welsh. [Executive
Secretary of the National Space Council, which coordinated space
initiatives.] Nonetheless, I believe it is right, for two reasons:

(a) Moving
toward a more cooperative relationship with the USSR in this field
will reinforce our over-all policy toward the Soviets.

(b) More
importantly: It will save money [emphasis in original], which can go
to (i) foreign aid, (2) domestic purposes — thus mitigating the
political strain of the war in Vietnam.

In other words,
the Outer Space Treaty was a budgetary raid first and foremost, and
only secondarily a strategy of international relations. More evidence
comes from the other document obtained by Wasser and reprinted by
Zubrin, a State Department report to
Secretary of State Dean Rusk, which set out the reasons for the
Outer Space Treaty and noted:

we see no
compelling reasons for early, major commitments to [space
exploration]. . . Moreover, if we can de-emphasize or stretch out
additional costly programs aimed at the moon and beyond, resources
may to some extent be released for other objectives.

Stripped of the
bureaucratese, the memos explain that the Outer Space Treaty was a
strategy by the State Department to raid NASA's budget. Limiting
America's reach into space was a minor sacrifice for the greater good
of taking money from NASA and giving the money to the State Department
and other old-line Washington bureaucrats. Then, State could then ship
the money, under the misleading label "foreign aid," to kleptocracies
favored by the State Department. American tax money that could have
produced amazing feats of exploration was instead delivered foreign
dictators who used the money to enrich themselves, to subsidize
destructive economic policies, and to
further oppress their populations. Foreign governments benefited
from this "aid," but foreign people were harmed.

As Zubrin
notes, the Outer Space Treaty — despite the mythology that has
developed since — did little to reduce U.S./Soviet tensions, as the
Soviet invasion of Czechoslovakia and the ongoing Vietnam War
demonstrated. But that was okay, because reducing tensions was merely
a pretext. Getting hold of the money was the real reason. And, in
fact, space exploration plans began to be scaled back almost
immediately, as money was shifted to the harmful foreign and domestic
welfare programs that marked the Johnson and Nixon years. NASA began
its descent into ossified bureaucracy; deprived of a meaningful
mission, it had few alternatives.

Now we find
ourselves in an entirely different world. The Soviet Union is no more.
Mars, it turns out, has far more water than we previously suspected:
enough to support colonies, and even programs aimed at giving it
a climate more hospitable to humans. The reward for going to Mars
has increased dramatically. At the same time,
new Mars mission architectures, also pioneered by Robert Zubrin
and studied by NASA for the past decade, indicate that the cost of
going to Mars has dropped dramatically. Whereas a 1990 study suggested
that a human mission to Mars would cost $500 billion for a
"flags-and-footprints" mission, experts now believe that it could be
done for a tenth of that; the very first landing could begin to create
infrastructure for long-term human presence and even colonization.

How realistic
are the prospects for resuming humanity's interrupted expansion into
the cosmos? Serious enough that the
misanthropic wing of the environmental movement is already
organizing to try to block space development. More progressive
environmentalists, though, welcome the idea of industrial activity and
pollution taking place on barren places like the Moon and Mars, rather
than on the Earth, where many plants and animals are harmed by
pollution.

The Bush
administration has shown that it is willing to reject politically
correct international agreements which harm America's interests — such
as the recently repudiated agreement creating an
International Criminal Court, and the
ABM treaty.

Given the Bush
administration's commendable interest in favoring American interests
over the opinions of the post-national bureaucrats and chattering
classes, the Bush administration should revisit Article 2 of the Outer
Space Treaty of 1967. In Article 16, the Treaty specifically provides
for states to
withdraw from the treaty, by providing one-year advance notice. At
the same time, the United States could announce that it would continue
to adhere to the provisions of the treaty that still make sense, such
as Article 4's prohibition of nuclear weapons in space.

Alternatively,
the United States could simply undertake an ambitious program of human
space exploration, one that lays the foundations for settlement off
the Earth, without viewing Article 2 as an impediment — but this
approach might prove problematic in the long run.

It is widely
agreed by space-law scholars that the Outer Space Treaty forbids only
national sovereignty — not private property rights. If, later this
century, Americans settle Mars, they will acquire property rights to
the land they settle. As
John Locke wrote: "As much Land as a Man Tills, Plants,
Improves, Cultivates, and can use the Product of, so much is his Property.

The American
government may choose to respect the Martian settlers' property
rights, and even defend them, without violating the treaty's terms, so
long as the government doesn't proclaim its own sovereignty over
portions of Mars. The American government, after all, has
traditionally defended its citizens' rights on the high seas (where no
nation may claim sovereignty) and even on the sovereign territory of
other nations when local governments were unable to do the job
themselves.

The Martian
settlers might choose independence, or they might choose to associate
in some way with an Earth state — much as the settlers of Texas first
chose to associate with Mexico, but then fought for their independence
after Mexico violated its constitutional guarantees to the Texans.
Still later, the Texans chose to join the United States.

Under the terms
of the Outer Space Treaty, however, the United States would be
prohibited from accepting the Martian settlement of New California as
the 51 state.

Notably,
Article 2 forbids "national appropriation," but does not ban
appropriation by some super-national body — such as the United
Nations. Surely the settlers of Mars would gain little from being
placed under the thumb of an infamously corrupt and self-serving
collection of dictatorships none of which (Russia excepted) have
contributed anything to the exploration of space. Can there be any
doubt that the United Nations bureaucracy, who is already attempting
to create a taxing authority and standing army for itself, would
proclaim its sovereignty over the Martian settlers?

Far better for
the settlers of Mars to enjoy the protections of the Constitution of
the United States — as did the settlers of the American Territories in
North America in the years before they achieved statehood. (A
now-disrespected set of Supreme Court decisions in the early 20th
century,
The Insular Cases, refused to the apply the Constitution to
territories conquered during the Spanish-American War, such as the
Philippines. The decisions were based on the racist theory that the
conquered peoples were unfit for Anglo-Saxon freedom. Those decisions
of conquest are irrelevant to Mars, where settlement would be by free
citizens coming from the United States — similar to the settlements of
Texas and the rest of the continental United States.)

President
Kennedy pointed America to the New Frontier. That frontier has
advanced to Mars. It is time for President Bush to ensure that
humanity's new frontier will enjoy constitutional freedom rather than
U.N. despotism.

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